* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-51213

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MIGUEL ANGEL ISLAS-MACIAS, also known as Eduardo Mendoza-Macias,

Defendant-Appellant

Cons. w/ No. 10-51227

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MIGUEL ANGEL ISLAS-MACIAS,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 4:09-CR-212-1

USDC No. 4:10-CR-289-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

December 15, 2011

Lyle W. Cayce

Clerk
No. 10-51213

c/w No. 10-51227

2

Miguel Angel Islas-Macias (Islas) appeals his sentence following his guilty

plea conviction for being found unlawfully present in the United States. He also

appeals his revocation sentence imposed after Islas violated the terms of

probation arising from a prior improper entry conviction.

Islas contends that, because he argued in the district court that he should

receive a lower sentence, plain error review is improper, even though he failed

to object on unreasonableness grounds. As Islas concedes, this court has held

that an objection to the substantive unreasonableness of a sentence is required

to preserve error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007);

see also Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999)

(holding that a panel of this court cannot overturn a prior panel’s decision). 

Islas further challenges the application of the plainly unreasonable

standard of review to his revocation sentence although he likewise concedes that

this court has held otherwise. See United States v. Miller, 634 F.3d 841, 843 (5th

Cir. 2011), petition for cert. filed, (U.S. May 27, 2011) (No. 10-10784). Because

Islas did not object to his revocation sentence, this contention is nevertheless

irrelevant, and review of his revocation sentence is also limited to plain error.

See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009); Puckett v.

United States, 129 S. Ct. 1423, 1429 (2009). 

In asserting unreasonableness, Islas first argues that the illegal reentry

guideline, U.S.S.G. § 2L1.2, is not empirically supported and a sentence under

that Guideline is therefore unreasonable. But “[a] discretionary sentence

imposed within a properly calculated guidelines range is presumptively

reasonable,” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.

2008), and this court has held that examination of the empirical basis for

sentencing guidelines is not necessary before applying the presumption of

reasonableness. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.),

cert. denied, 130 S. Ct. 378 (2009). This court has also rejected Islas’s argument
No. 10-51213

c/w No. 10-51227

3

that the non-violent nature of illegal reentry warrants reversal of the district

court’s ruling. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.

2006).

As for Islas’s revocation sentence, his sentencing range was 8-14 months,

under the policy statements. See § 7B1.4(a), (b)(3)(A). The statutory maximum

sentence that could be imposed upon revocation of Islas’s parole was a one-year

term of imprisonment because the offense resulting in his term of probation was

a Class E felony. 18 U.S.C. § 3583(e)(3). Islas’s violation of his probation was

a Grade B violation, see § 7B1.1(a)(2), and at the time of his original sentencing

to probation, Islas’s criminal history category was III. The 11-month sentence

imposed was therefore within the policy statement guidelines range and below

the statutory maximum penalty. 

Islas contends that all of the goals of sentencing could have been met by

a far lower combined sentence. However, “[a] defendant’s disagreement with the

propriety of the sentence imposed does not suffice to rebut the presumption of

reasonableness that attaches to a within-guidelines sentence.” United States v.

Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). The record demonstrates that the

district court considered the 18 U.S.C. § 3553(a) factors and Islas’s arguments

at sentencing before determining that a within-guidelines sentence was fair and

reasonable. The district court pointed out that Islas had been voluntarily

returned seven times to Mexico and indicated that further deterrence was

necessary under those circumstances. The district court’s comments indicate

that it considered the § 3553(a) factors as well as the Chapter 7 policy

statements. Islas has not shown that the revocation sentence imposed was

plainly unreasonable.

Accordingly, Islas has not offered sufficient reasons to disturb the

judgment of the district court, and the sentences are AFFIRMED.